The Arkansas Supreme Court has ruled that a parent cohabiting with a same-sex partner cannot be denied child visitation rights purely on the basis that they are cohabiting.
In 2011, the Arkansas Supreme Court struck down a law that prevented unmarried cohabiting couples from adopting and fostering. As a result, same-sex couples are now free to adopt a child. Despite this, judges in Arkansas have still automatically denied overnight visitation rights to birth parents cohabiting with a new domestic partner. That is, until now.
Last week the Arkansas Supreme Court overturned a lower court ruling stopping Mr. John Moix from having his biological child stay at his home overnight while his same-sex partner is in the same house.
Moix and his ex-wife, known as Libby, have had an acrimonious relationship since their split, and Libby contested that Moix should not be allowed to have his son stay over while his same-sex partner is in the same house as, were that relationship to break down, it could damage the child emotionally.
The original ruling in this case by a Pulaski Court Judge recognized that Moix, who wanted to strengthen his relationship with his 12-year-old son, had been in a dedicated relationship with another man for more than five years. The judge also concluded that allowing the child to stay with Moix and his partner posed “no threat to the health, safety, or welfare” of the child. Despite this, the judge ordered that Moix’s son could not stop with Moix if his partner was present because Arkansas law emphasized marriage as a stable environment for child visitation.
Moix, together with the ACLU, appealed this decision, saying that it placed an illegal burden on Moix that essentially asked him to choose between his relationship with his partner and his relationship with his son — after all, Arkansas forbids same-sex couples from marrying.
A majority of the seven justices on the Arkansas Supreme Court agreed with Moix, and what’s more went further to clarify that cohabitation could not be used as a disqualifying factor for visitation rights.
The Court wrote:
We agree with appellant that the public policy against romantic cohabitation is not a “blanket ban,” as it may not override the primary consideration for the circuit court in such cases, which is determining what is in the best interest of the children involved. [...]The court further found that, “[o]ther than the prohibition of unmarried cohabitation with a romantic partner in the presence of the minor child, there are no other factors that would militate against overnight visitation.” However, because the circuit court also stated that the mandatory application of our public policy against unmarried cohabitation required it to include a non-cohabitation provision, it made no finding on whether such a provision was in the best interest of [the child]. Therefore, we reverse and remand for the circuit court to make this determination.
As above, the Court has returned the case to the lower courts so that Moix’s access can be reconsidered in the light of this new guidance. This doesn’t necessarily mean that Moix will ultimately prevail, but gay rights advocates in particular have highlighted this ruling as an important one for furthering same-sex parenting rights in the state.
Holly Dickson, legal director of the ACLU of Arkansas, is quoted as saying, ”The ruling reaffirms the basic principle that custody decisions should be based on an individual family’s circumstances and the needs of a child, not a blanket, one-size-fits-all rule.”
Moix and his partner are said to be considering marrying in Iowa, but as of current law, this would not help them as Arkansas does not recognize marriage equality.
However, that could change in the relatively near future as state Attorney General Dustin McDaniel has recently approved petition wording for a 2016 ballot initiative to repeal the state’s constitutional ban on same-sex marriage. This gives marriage equality advocates the go-ahead to begin collecting signatures. The repeal would not technically legalize marriage equality but would remove a significant barrier and pave the way for future action.
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